ZULFIQAR AHMAD KHAN, J.----This revision has been preferred against the judgment dated 13.02.2006, passed by the appellate Court in Civil Appeal No,10 of 2003, available at page-305 of the Court file, where findings of the trial Court were reversed.
2. Brief facts of the case are that one Sulleman Shah who died somewhere in 1996 had three wives namely Bibi Wadal Shah, Mst. Amna and Mst. Hakeeman. A registered sale deed was executed in respect of the suit plot, situated in Ward No,5 near Railway Station, Talhar by said Sulleman Shah in favour of his wife Mst. Wadal. The document is attached at page-75, which is a duly registered document executed between Sulleman Shah and Bibi Wadal Shah.
3. While there appears a dispute with regard to actual date of death of Bibi Wadal Shah, notwithstanding thereto, after her death, F.C. Suit No,84/1999, copy of which is available on page- 35 of the Court file) was filed by Mst. Hakeeman against the legal heirs of Bibi Wadal Shah claiming that the property registered in the name of Bibi Wadal in fact belonged to her because her husband Sulleman Shah out of love and affection used to call her (i,e, Mst. Hakeeman) as "Bibi Wadal". Though the said suit, a declaration was sought to the effect that Mst. Hakeeman be declared the exclusive owner of the suit plot.
4. The suit was vigorously contested by the legal heirs of the "real" Bibi Wadal Shah. In fact it was stated through a written statement that Sulleman Shah married Mst. Hakeeman, (who was admittedly his youngest wife) in the year 1982, whereas the sale deed was executed in the year 1981. The trial Court framed as many as 9 issues and after hearing the parties and considering the evidence as well as the record, vide judgment dated 31.08.2000, (available on page-201 of the Court file) dismissed the aforementioned suit. Against the said judgment, an appeal was preferred, where the appellate Court vide judgment dated 23.11.2001 (available on page-245) framed two new issues and remanded the case back for retrial. Thereafter, the aforementioned F.C. Suit was renumbered as F.C. Suit No,52/2002 and after recording further evidence on all issues including two new issues framed by the appellate Court, trial Court vide judgment dated 30.01.2004 (available on page-253) again dismissed the suit of the respondent No,1 camouflaging herself as Bibi Wadal.
Against the second dismissal, an appeal was preferred where the appellate Court through judgment dated 13.02.2006 (copy available on page-305) allowed the appeal and set aside the judgment of the trial Court. Against which, the instant revision has been preferred.
5. Learned counsel for the applicants submitted that the appellate Court committed gross error while reversing the findings of the trial Court as the evidence of 10 witnesses available on record was not considered, in particular even that of Mst. Hakeeman herself. He further stated that the appellate Court did not consider that respondent No,1 himself in his evidence (Ex.34) stated that his age was 40 years at the time of recording the evidence and such deposition was recorded on 26.08.2003, whereas the registered sale deed Ex.35 was executed on 5.10.1981 wherein age of Bibi Wadal Shah is shown as 46 year whereas till today the age of the respondent No,1 is not 46 years; that the learned appellant court did not consider this material aspect of the case that Mst.
Hakeeman herself stated in her deposition that after death of her husband she got changed her name from Bibi Hakeeman to Bibi Wadal which fact itself proves that after death of her husband she changed her mind and with malafide intention wanted to usurp the property of the applicants; that learned appellate Court also did not consider this material aspect of the case that respondent No,1 in her cross-examination stated that after 2 years of marriage she gave birth to Abdul Sattar and at that time (26.08.2003) his age was 16 years. This fact proved from the deposition of witness Jurial Shah (Ex.48), who was witness of respondent No,1 and stated that the age of Abdul Sattar was 15 years at that time. It thus shows that the respondent No,1 married with late Sulleman Shah in the year of 1982 whereas the registered sale deed Ex.35 was executed in the year 1981. The respondent No,1 further admitted in her cross-examination that she had married 14 years back from that date viz. 26.08.2003 with late Sulleman. The witness of respondent No,1 Jurial Shah Ex.48 in his cross-examination clearly stated that in the year 1982 the respondent No,1 was married with Sulleman Shah and the mother of applicant No,1 which was examined at Ex.94 neither remember the year of marriage nor in suggestion denied that her daughter was married with Sulleman in the year 1983. From the above evidence of respondent No, 1, it became clear that she had married with late Sulleman Shah in the year 1982 then registered sale deed was executed in the year 1981 at that time she was not wife of late Sulleman hence he has no right to claim the property on the basis of above document; that the learned Appellate Court also did not consider that Mst. Hakeemah herself stated that her name in domicile Ex.41 shows Bibi Hakeeman and not Bibi Wadal. The registered sale deed executed in the year 1981 also did not disclose the name of Bibi Hakeeman alias Bibi Wadal therefore her name which from the above two documents prove as Bibi Hakeeman and not Bibi Wadal. Learned counsel further stated that the appellate Court also did not consider the fact that respondent No, 1 produced witness namely Jurial Shah (Ex.48) who in cross- examination stated that 17 years back Mst. Wadal first wife of late Sulleman died and his deposition was recorded on 26.05.2000, meaning thereby that the first wife of late Sulleman Mst. Wadal mother of the applicants died in the year 1983; that the appellate Court did not consider this material aspect of the case, that in this case the Star Witness Fazal Hussain Khowaja who was examined at Ex.54 and stated that "I am the attesting witness of the registered sale deed Ex.35" and he saw the same and stated that "it is same and correct and bears my signature". He further stated that late Sulleman Shah sold the suit plot to his first wife namely Wadal Shah in the year 1981 and at time her age was 46 years and she died in the year 1983. All the witnesses of the applicants supported these versions but the learned appellate Court did not consider a single version of these witnesses in his judgment, hence the same is illegal. He next submitted that the learned appellate court did not consider this material aspect of the case that in this case Administrator of UC Dada examined at Ex.60 and Nazim at Ex.98 but their evidence also not considered by the learned trial court hence the same judgment is illegal and void and liable to be reversed; that the learned appellate Court also did not consider that the registered sale deed was executed in the year 1981 and Mst. Hakeeman filed suit on 7.9.1999 and under Article 91 of the Limitation Act for cancellation of the sale deed the period provided is 3 years, whereas this suit has been filed after 18 years, hence the same is clearly time barred, but the learned appellate Court did not give any finding on this legal and appropriate issue in controversy. Lastly, the learned counsel contended that the impugned judgment and decree passed by the learned appellate Court is based on presumption, suppositions, assumption, conjectures and surmises which have not basis in the eyes of law, hence the same is liable to be set aside.
6. Learned counsel representing the legal heirs of Mst. Hakeeman submitted that it was.a fact that late Sulleman Shah used to call her third wife (Mst. Hakeeman) as "Bibi Wadal" out of love. In support of his contention, he drew Court's attention to page-87 of the Court file, wherein an application made by Sulleman Shah for issuance of "B-Form" in the year 1977 is reproduced, where amongst others, names of Mst. Amnat is shown as his first wife and name of Bibi Wadal is also present (however, there appears a clear overwriting in the said B-Form (pages-85 and 87) as name of "Bibi. Wadal" has been written with different pen altogether). The learned counsel also drew Court's attention to page-99, which is a copy of domicile obtained by Sulleman Shah for himself wherein name of said Sulleman Shah along with his two wives namely Mst. Amnat and Bibi Hakeeman has appeared. (This document is dated 28.07.1985 thus referring to last two wives as the first wife had died already by this time). Learned counsel also took the Court to page-89 of the Court file, which is a notice issued in daily "IBRAT" dated 30.01.1999, where Mst. Hakeeman has made a public announcement about change of her name from Mst. Hakeeman to Bibi Wadal.
Learned counsel also drew Court's attention to a Notification dated 25.02.1999 where the said lady had changed her name Mst. Hakeeman to Bibi Wadal. He therefore contended that in fact the lady Bibi Wadal named in the sale deed is Mst. Hakeeman.
7. Learned AAG supported the case of the applicants and submitted that no record is available to show that Mst. Hakeeman was ever recognized as Bibi Wadal before the death of original Bibi Wadal, since all the documents presented are subsequent to latter's death. He submitted that the appellate Court committed a gross error by allowing the appeal for no cogent reasons.
8. A review of the three judgments, two delivered by the trial Court and one from the appellate Court, shows that trial Court has considered all the evidence available on record whereas the appellate Court vide impugned judgment available on page-305, without giving any due consideration to the evidence as well as the record available reversed the findings of the trial Court abruptly without giving any cogent reasons.
9. The fact is that respondent No,1 in her examination-in-chief has not disclosed as to when she had married Sulleman Shah. However, in her cross-examination recorded on 02.05.2000, she has admitted that she had married about 14 years back which means she was married in the year 1986.
She has further admitted that her elder son Abdul Sattar was born after two years of her marriage and that age of Abdul Sattar was 16 years before the trial Court in this way she was married in the year 1982. The respondent No,1 has also examined on 26.05.2000 one witness namely Jurial Exh.48.
In his examination in chief he has stated that the age of respondent No,1 was about 60 years and further the respondent No,1 had married at the age of 20-25 years prior with Sulleman Shah.
According to that statement, the respondent No,1 married in the year 1980 or prior to that. On the other hand applicant No,1 who was examined at Ex. 52 had stated that the respondent No,1 had married with late Sulleman Shah in the year 1982. The other witness DW-3 namely Nawaz Ali was examined at Exh.55. This witness has also stated that the respondent No,1 was married with late Sulleman Shah in the year 1982. As the learned Advocate for the respondent No,1 before the trial Court did not challenge the statements of these witnesses about the marriage of the respondent No,1 in the year 1982 and when copy of Nikahnama was not produced by any of the parties to ascertain the date of marriage of respondent No,1, accordingly from the above evidence brought on record the trial Court rightly held that the respondent No,1 was married with late Sulleman Shah in the-year 1982.
10. The respondent No,1 in her statement Exh.34 stated that the name of first wife of Sulleman Shah was Mst. Bibi Wadal Shah. She has further stated that late Sulleman Shah besides calling her name as Bibi Hakeeman also called her as Bibi Wadal Shah. Her witness Jurial Exh.48 also stated that Mst.
Hakeeman was also called in the second name as Bibi Wadal as he was on visiting terms with both the parties being the cousin of defendant No,7 (Mst. Amna) the second wife of Sulleman Shah. The applicant No,1 examined as Exh.52 stated that the respondent has no nick name as Bibi Wadal Shah as claimed by her as her actual name is Bibi Hakeeman. The other witness of applicant No,1 namely Fazal Hussain DW-2, who was examined as Exh.54 stated that the claim of the respondent No,1 that her nickname was Bibi Wadal Shah and the registered sale deed Exh.33 executed by late Sulleman Shah in her favour was devoid of truth. The other witness namely Nawaz Ali examined as Exh.55 also stated that the name of respondent is only Bibi Hakeeman and she has no nickname as claimed by her. This statement was not challenged by the respondent during cross-examination.
The defendant (Ismail Shah) who was examined as Exh.57 and who admittedly had strained relations with applicants Nos,1 to 6 has named Bibi Hakeeman alias Wadal Shah and that his father also called the respondent No,1 as Bibi Wadal Shah. The certificate of domicile Exs.41 as produced by the respondent showed her name as Bibi Hakeeman and there is no Nicknames are shown there. For these reasons the trial Court reached to the conclusion that late Sulleman Shah may have called respondent as Wadal Shah some times while remembering his first wife, but there was no convincing evidence on record to suggest that the respondent was in fact called Bibi Wadal Shah.
11. With regards the suit plot, the respondent No,1 in her evidence Exh.34 stated that the suit plot situated near Railway Station Talhar Town belonged to her late husband who in the year 1981 sold out the same to her against a sale consideration of Rs,3,000.00. In this regard he had executed a registered sale deed bearing No,665 dated 05.10.1981 which she has produced as Exh.35. According to her the sale deed bears thumb mark of late Sulleman Shah but the respondent No,1 herself had not signed the same. She further stated that her husband besides calling her as Bibi Hakeeman also called her Bibi Wadal Shah. After sale of suit plot and after death of Sulleman Shah, the applicant No,1 used to look after the said plot where there are number of tenants. She has further stated that during his life time late Sulleman Shah got prepared the national identity cards of her children and had filled the form. The duplicate copies of the same two in number she produced 8 Exhs.36 and 37. She further stated that after the death of her husband she got her name changed from Mst. Bibi Hakeeman to Mst. Wadal Shah and such article was published in newspaper "Ibrat" dated 01.02.1999. She claimed that the suit plot belonged to her and the applicants Nos,1 to 6 were falsely claiming the same as their property inherited from their mother Mst. Bibi Wadal Shah. The respondent also examined one Jurial son of Juman as Exh.48. This witness in his examination-in- chief supported the respondent regarding transfer of suit plot in favour of respondent by her husband late Sulleman Shah. In his cross-examination he admitted that in the year 1982 the respondent had married with Sulleman Shah, (to keep in mind is that the sale deed pertains to the year 1981). This witness further admitted that about 5-6 years back the respondent had informed him that she has filed a suit against applicants Nos,1 to 6 on account of dispute over the suit plot whereas the present suit has been filed in the year 1999 by the respondent. This witness has also admitted that he had no personal knowledge about the dispute between the respondent and applicants Nos,1 to 6. The evidence of this witness was not considered all trust-worthy as he had given contradictory statements and had admitted that he has no personal knowledge about the dispute. It is a matter of record that through Exh. 39, the Sindh Government Gazette Notification it could be seen that she has changed her name from Bibi Wadal Shah to Bibi Hakeeman, so also in Exh. 40 the No objection certificate issued by District Magistrate Badin. The domicile as Exhibited 41 by the respondent dated 20.07.1985 clearly mentions the name of respondent as Bibi Hakeeman and not alias Wadal Shah. In her examination in chief she stated that after the death of her husband she got changed her name from Mst. Hakeeman to Mst. Wadal Shah. In contrast the applicant No,1 who had examined himself at Exh. 52 denied all the averments of the respondent No,1 with regard to sale of the suit plot to her in the year 1981 by means of registered sale deed. He examined one Fazal Hussain at Ex. 54, who was the attesting witness of registered sale deed and who stated in clear terms that the suit plot was sold by late Sulleman Shah to his first wife Bibi Wadal Shah. He has seen the original sale deed Exh. 35 and has stated that the same bears his signature as attesting witness. He has further stated that at the time of execution of sale deed Mst.
Bibi Wadal Shah was 46 years old and he was informed by applicant No,1 that Bibi Wadal Shah had died in the year 1983. The evidence of this witness is extremely reliable, as he was the attesting witness of the sale deed and therefore he knew to whom the property was being sold. The death certificate of Bibi Wadal Shah produced by D.W.5 Muhammad Moosa, the Administrator of Union Council Dadan Ex.63 showed that Mst. Bibi Wadal Shah expired on 03.5.1983 and not about 40 years back as stated by the respondent No,
1. Though the entry in the death register of Union Council was made in the month of February, 1999 on the application of applicant No,1 but there is nothing on record to suggest that the respondent No,1 had challenged the same before any higher authority.
With these materials on record, the trial Court reached to the conclusion that respondent No,1 married with late Sulleman Shah in the year 1982, leaving no possibility that in the year 1981, late Sulleman Shah had sold out the suit plot to respondent No,1. The registered sale deed clearly mentioned that the suit plot was sold to Bibi Wadal Shah and not to the respondent No,
1. It was for these reasons the trial Court held that deceased Sulleman Shah in fact sold the suit plot to his first wife Mst. Wadal Shah and not to the respondent No,l.
12. From the perusal of the appellate Court's judgment, it appears that the applicants Nos,1 to 6 in their written statement stated that other half portion of plot was sold out by deceased Sulleman Shah to his son Abdullah Shah, which indicated that Bibi Wadal Shah was undoubtedly mother of said Abdullah Shah. It was argued by learned counsel for respondent No,1 that said Abdullah Shah was the same person who was being called as Ismail Shah, which led the appellate Court to believe that the deceased Ismail Shah was in habit of calling his family member by two names. The applicants Nos,1 to 6 in their written statement also stated that second wife of deceased Sulleman Shah namely Mst. Amant Bibi was also called as Mir Zadi. This shockingly led the appellate Court to believe that late Sulleman Shah was in the habit of calling people with different names. In their written statement the applicants Nos,1 to 6 stated that at the time of execution of sale deed, the age of Bibi Wadal was about 46 years and as per school leaving certificate Ex.92 the first son of Bibi Wadal Shah namely Hashim Shah was born in 1946 and then the age of applicant No,1 at the time of execution of registered sale-deed would be 36 years and there is only difference of 10 years between the age of mother and her son was shockingly the reason, the appellate Court reached to the conclusion that the registered sale-deed was registered in favour of third wife of deceased Sulleman Shah.
13. It was also an influential factor for the appellate Court to observe that the original sale-deed as exhibited by the respondent No,1 on record always remained with respondent No,
1. From the perusal of exhibits Nos,36 and 37, appellate Court came to the conclusion that since the name "Wadal Shah daughter of Hashim Shah" was written on these documents, and since name of Bibi Wadal wife of Sulleman Shah nowhere appeared, it established that Bibi Wadal died in 1960! Just because the applicant No,1 admitted that he was illiterate the entire testimony of the applicant No,1 was held to be unreliable and untrustworthy by the appellate Court.
14. With regards the evidence of DW Fazal Hussain who admitted that at the time of register sale- deed. Ex.35, Bibi Wadal Shah was not present before the Sub-Registrar Badin, and because he admitted that he has not attended the nikah ceremony of respondent No,1 with late Sulleman, and because he admitted that he had not attended the funeral ceremony of Bibi Wadal Shah the first wife of Sulleman Shah, nor paid visit to Sulleman Shah for condolence of his late Bibi Wadal Shah, and because that he did not know in which name late Sulleman Shah used to call his wives in his house, the appellate Court decided that DW Fazal Hussain Shah could not be considered as a reliable source.
15. In these circumstances, the appellate Court reached to the conclusion that "it was clear that learned lower Court had not considered the evidence on record minutely and the findings of the learned lower court were result of misreading and misapplication of evidence". Therefore, the impugned Judgment and Decree rendered by the court below was set aside and the suit of the respondent No,1 was decreed as prayed for with no order as to costs.
16. The instant revision has been filed against conflicting findings of the Courts below. A perusal of the trial Court's judgment shows that the same has been passed after considering the evidence available on record and hearings both the sides, whereas misreading and non-reading of the evidence as well as no misappraisal of the facts and documentary evidence available on record has come up on the surface in the trial Court's judgment. Since in my humble view no illegality or material irregularity was committed by the trial Court, and in the absence of any legal defect in the trial Court's findings, no interference should have been made by the appellate Court, thus for the above reasons, it appears that the appellate Court's judgment is arbitrary, fanciful, perverse and patently result of misreading and non-reading of complete evidence and other material available on record, thus is liable to be set aside as per the Apex Court's judgments' criterian laid down in the case reported as 2008 SCM R 398.
17. In the given circumstances, I allow this revision, set aside the judgment and decree of the appellate Court dated 13.02.2006 and maintain the judgment and decree passed by the trial Court dated 30.01.2004.